Citation Nr: 20049908 Decision Date: 07/27/20 Archive Date: 07/27/20 DOCKET NO. 19-33 721 DATE: July 27, 2020 ORDER Entitlement to an effective date prior to October 15, 2004 for the grant of entitlement to service connection for coronary artery disease, to include on the basis of clear and unmistakable error (CUE), is denied. Entitlement to an initial disability rating in excess of 30 percent for residuals of stroke, characterized by hemiparesis of the left upper extremity, is denied. Entitlement to an increased 30 percent disability rating for bilateral proliferative diabetic retinopathy is granted. FINDINGS OF FACT 1. A December 2005 rating decision granted entitlement to service connection for coronary artery disease effective October 15, 2004; the Veteran did not appeal. 2. No record received prior to October 15, 2004 can be reasonably construed as a claim of entitlement to service connection for coronary artery disease or a related disability. 3. During the period on appeal, the Veteran’s residuals of stroke, characterized by hemiparesis of the left upper extremity, was not manifested by severe incomplete paralysis of all radicular groups. 4. For the entire period on appeal, the Veteran had no more than light perception in the left eye and 20/40 vision in the right eye. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to October 15, 2004, for the grant of service connection for coronary artery disease have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. §§ 3.114, 3.400, 3.816. 2. The criteria for an initial disability rating in excess of 30 percent for residuals of stroke, characterized by hemiparesis of the left upper extremity, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8513. 3. The criteria for a 30 percent disability rating for bilateral proliferative diabetic retinopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1-4.14, 4.79, Diagnostic Code 6063. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty with the United States Navy from July 1966 to April 1976. He had overseas service in Vietnam and was a recipient of the Combat Action Ribbon, among other decorations and awards. Unfortunately, the Veteran passed away in January 2018. The appellant is his surviving spouse and has been substituted for the Veteran as the claimant in this matter. 1. Entitlement to an effective date prior to October 15, 2004 for the grant of entitlement to service connection for coronary artery disease Generally, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, it will be the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b). “Claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a specific benefit under the laws administered by VA. 38 C.F.R. § 3.1 (p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). A rating decision adjudicating a claim for benefits will become final if a claimant does not perfect an appeal by filing a notice of disagreement within one year from the date that the RO mailed the notice of the determination. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. A claimant may not file a new claim seeking an earlier effective date for an award where the decision that assigned the effective date has already become final. Such a claim would be a “freestanding” effective date claim; these types of claims are not allowed and are subject to dismissal. Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). The only way to overcome the finality of a decision is to request revision of the decision based on clear and unmistakable error (CUE). A claim of CUE is a form of collateral attack on an otherwise final rating decision by a VA regional office. See Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed.Cir.2000). Essentially, CUE is an avenue by which a claimant may correct an error that was made in an earlier RO rating decision that has become final. In a CUE claim, no new evidence is presented. It is the claimant’s burden to show that in the prior decision, an administrative error occurred that failed to apply the correct statutory and regulatory provisions to the correct and relevant facts. If the claimant successfully shows CUE in the prior decision, that decision is reversed, and the effective date will be as if the claim had been granted at the time of the denial. CUE is a very specific and rare kind of error. To revise a decision on the grounds of CUE, there must have been an error which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be CUE. That is, “but for” the alleged error, the outcome would have been “manifestly different,” a conclusion to which “reasonable minds could not differ.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Any claim of CUE must be pled with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000). Under 38 C.F.R. § 20.1404, motions for CUE must set forth clearly and specifically the alleged error(s) of fact or law, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations are insufficient. Motions which fail to comply with this requirement shall be dismissed without prejudice to re-filing. See Simmons v. Principi, 17 Vet. App. 104 (2003). CUE is a kind of error that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. 38 C.F.R. § 20.1403. Therefore, in order to establish CUE, an appellant must show that (1) either the facts known at the time of the decision being attacked on the basis of CUE were not before the adjudicator, or the law then in effect was incorrectly applied; (2) an error occurred based on the record and the law that existed at the time; AND (3) had the error not been made, the outcome would have been manifestly different. Russell v. Principi, 3 Vet. App. 310 (1992). In this case, a December 2005 rating decision granted entitlement to service connection for coronary artery disease as secondary to service-connected diabetes mellitus, with an effective date of October 15, 2004. The Veteran did not appeal the decision, and it became final. Subsequently, pursuant to 38 C.F.R. § 3.816 (Nehmer regulations), the Regional Office (RO) initiated its own review of whether the assigned effective date of October 15, 2004 was proper. A February 2014 rating decision determined that an earlier effective date was not warranted based on the fact that October 15, 2004 was the date of receipt of the Veteran’s original claim of entitlement to service connection. Again, the Veteran did not appeal the decision, and it became final. In a July 2017 supplemental claim, the Veteran, through his representative, alleged a CUE in the February 2014 rating decision. Specifically, the representative contended that service connection should have been awarded effective August 25, 2003, and that medical evidence showed diagnosis of coronary artery disease in September 2003. As previously discussed, a claimant may not file a new claim seeking an earlier effective date for an award where the decision that assigned the effective date has already become final. The only way to overcome the finality of a decision is to request revision of the decision based on clear and unmistakable error (CUE). As a threshold matter, and affording the appellant the benefit of the doubt, the Board finds that the representative identified the alleged error of fact or law, the legal or factual basis for his allegation of CUE, and why the result would have been manifestly different but for the alleged error, in accordance with 38 C.F.R. § 20.1404. However, the Board finds that the appellant has not shown that the alleged error of fact or law in the February 2014 rating decision rises to the level of CUE. In reaching this conclusion, the Board notes that the Veteran did submit a claim for benefits on August 25, 2003: “I would like to upgrade my VA checks from 70% to 100% due to the fact that I can no longer work and had to go on disability . . . .” The Veteran also asked “to be checked for Agent Orange,” and a letter from a private physician submitted shortly thereafter indicates the Veteran had coronary artery disease. However, as previously discussed, “claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a specific benefit under the laws administered by VA. Here, in his August 2003 claim, the Veteran did not specifically seek service connection for a particular disability related to herbicide exposure. Instead, the August 2003 claim was appropriately construed by the RO as claim of entitlement to a total disability rating based on individual unemployability (TDIU), not service connection. Indeed, the RO subsequently granted entitlement to a TDIU. The earliest claim that could reasonably be construed as a claim of entitlement to service connection for coronary artery disease, or for a disability related to herbicide exposure, is the correspondence received on October 15, 2004. Though the evidence suggests the Veteran had been diagnosed with coronary artery disease earlier, applicable law provides that an effective date of an award of compensation based on an original claim will be the date of receipt of the claim or date entitlement arose, whichever is later. Accordingly, the Board finds that the appellant has not established a CUE in the February 2014 rating decision because she has not met her burden of showing that the RO failed to apply the correct statutory and regulatory provisions to the correct and relevant facts. The decision made was a plausible interpretation of those facts, and the evidence does not compel a contrary conclusion. In any case, the Veteran had multiple opportunities to appeal the effective date assigned but did not do so. Neither the appellant nor her representative have asserted any other grounds for awarding an effective date earlier than October 15, 2004. Therefore, the claim for an earlier effective date, to include on the basis of CUE, must be denied. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on average impairment of earning capacity. 38 U.S.C. § § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated based on specific criteria identified by Diagnostic Codes. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial ratings assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). A Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an increased rating for service-connected residuals of stroke The Veteran sought an increased disability rating for his service-connected stroke residuals, characterized by hemiparesis of the left upper extremity. His disability was rated 30 percent disabling under Diagnostic Code 8513 for the entire period on appeal. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. Diagnostic Code 8513 provides the rating criteria for paralysis of the nerves of all radicular groups. Incomplete paralysis of the major extremity is rated 20 percent when mild, 40 percent when moderate, and 70 percent when severe. A 90 percent rating is warranted for complete paralysis. Incomplete paralysis of the minor extremity is rated 20 percent when mild, 30 percent when moderate, and 60 percent when severe. An 80 percent rating is warranted for complete paralysis in the minor extremity. 38 C.F.R. § 4.124a. Turning to the evidence, the Board notes that a VA central nervous system and neuromuscular diseases examination and a VA peripheral nerves examination were completed based on review of available records in September 2017. The examinations were conducted based on review of the records because the Veteran was hospitalized in a long-term care facility and was unable to attend appointments. The same examiner completed both examinations. In the central nervous system and neuromuscular diseases examination report, the examiner noted that the Veteran had a history of acute embolic stroke with a history of paroxysmal atrial fibrillation, and that imaging studies showed “diffuse atrophy most likely due to either stroke or microvascular disease.” She wrote that residuals of the Veteran’s stroke included left-sided dense hemiparesis. The examiner noted that the Veteran had muscle weakness in the upper and lower extremities. Muscle weakness in the left upper extremity was “severe.” In the peripheral nerves examination report, the examiner wrote that the Veteran had upper extremity sensory symptoms consistent with diabetic neuropathy of the upper extremities. The examiner noted that the Veteran’s dominant hand was his right hand. The examiner indicated that review of the record showed no symptoms of constant pain, intermittent pain, paresthesias and/or dysesthesias, or numbness of the left upper extremity. Muscle strength testing of each of the muscles of the left upper extremity revealed no movement against gravity. The examiner noted that the Veteran did not have an upper extremity diabetic peripheral neuropathy. Regarding functional impact, the examiner wrote, “[f]rom the peripheral nerve standpoint alone, [the Veteran] would be able to do light sedentary work such as answering phones as his upper extremit[ies] are not impaired from the neuropathy.” Overall, the Board finds that the evidence is against assigning a disability rating in excess of 30 percent for stroke residuals characterized by hemiparesis of the left upper extremity. The available evidence does not show that the Veteran’s left upper extremity hemiparesis could be considered “severe” under the applicable diagnostic code during the period on appeal. While the examiner found that review of the record showed the Veteran experienced “severe” left upper extremity weakness, it did not show that he had symptoms of constant pain, intermittent pain, paresthesias and/or dysesthesias, or numbness of the left upper extremity. She concluded that the Veteran’s upper extremities were “not impaired” from neuropathy. Therefore, the claim for an increased rating must be denied. 3. Entitlement to an increased rating for service-connected proliferative diabetic retinopathy The Veteran sought a disability rating in excess of 10 percent for his proliferative diabetic retinopathy, rated 10 percent disabling under Diagnostic Code 6099-6079 for the entire period on appeal. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Both the former and revised criteria provide for consideration of visual impairment. The amendments made no substantive changes to how visual acuity is rated. Regarding visual field and muscle function examinations, the Board notes that use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. The evaluation of visual impairment is based on impairment of central visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a). Ratings may also be based on incapacitating episodes. 38 C.F.R. § 4.79, Diagnostic Codes 6000-6009. Under certain circumstances, separate ratings may be warranted for scarring associated with an eye disability. Diagnostic Code 7800 assigns disability ratings for disfigurement of the head, face, or neck. In this case, the evidence does not show that the Veteran experienced visual field defects or impairment of muscle function during the period on appeal, and there is no indication he had incapacitating episodes or scarring or disfigurement sufficient to meet the criteria under Diagnostic Code 7800. As such, the Board will consider ratings based on impairment of central visual acuity only. 38 C.F.R. § 4.79, Diagnostic Code 6066. Ratings for impairment of central visual acuity range from noncompensable to 100 percent. Central visual acuity generally is evaluated using corrected distance vision. 38 C.F.R. § 4.76(b). However, examination of visual acuity must include the central uncorrected and corrected visual acuity for distance and near vision using Snellen’s test type or its equivalent. 38 C.F.R. § 4.76 (a). Evaluation of visual acuity should be done on the basis of corrected distance vision with central fixation, unless the lens required to correct distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye. 38 C.F.R. § 4.76 (b). Turning to the evidence, the Board observes that VA treatment records show the Veteran underwent an ophthalmology consultation in August 2017. The note indicated the Veteran had previously reported new vision loss in the right eye, but at the time of the examination, he reported that his vision was fine and that he had no complaints. The ophthalmologist noted that the Veteran exhibited fluctuating cognition and cooperation, and that he had been admitted to the intensive care unit for “altered mental status secondary to uncontrolled diabetes.” The ophthalmologist further noted that the Veteran was known to be “completely blind” in the left eye, and that his previous eye examination the previous year showed 20/40 visual acuity in the right eye. Current examination revealed visual acuity of “at least” 20/200 in the right eye without correction. The Veteran was uncooperative for other visual tests, including visual field testing. The ophthalmologist wrote that there was no acute pathology seen during the examination; that visual acuity was at least 20/200 in the right eye, “but I suspect it is better than this and possibly at baseline.” (Continued on the next page)   A September 2017 VA examination report essentially reiterated the findings from the August 2017 ophthalmology consultation. The examiner noted that his report was completed based on review of the record because the Veteran was unable to visit the clinic due to dementia and homebound care. The examiner noted that the August 2017 report showed no acute ocular pathology, and that visual acuity in the right eye was possibly at prior baseline (20/40). Overall, the Board finds that the weight of the evidence supports awarding an increased 30 percent disability rating for the entire period on appeal. The best available evidence indicates the Veteran was blind in his left eye, and that right eye visual acuity was 20/40. The evidence does not show the Veteran had anatomical loss of the left eye. Under 38 C.F.R. § 4.79, no more than light perception in one eye and corrected visual acuity of 20/40 in the other eye yields a 30 percent disability rating. Therefore, a 30 percent disability rating is warranted; to that limited extent, the appellant’s claim is granted. However, the evidence does not support a disability rating in excess of 30 percent. Such a rating would require more severe levels of visual impairment not shown in the evidence of record. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. T. Raftery, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.